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Client Competence Is the Answer

The Improvisational Lawyer

Preparing for Negotiation

Perception is Reality

Practice Tips

The Improvisational Lawyer

Imagine you are an actor on a stage with three other actors. Your task is to perform an unscripted scene. The audience is asked to call out a location and a situation. One member of the audience shouts out, “a playground.” Another specifies that the situation involves “making up a new game.” You begin the scene and say, “I have here in my hand an aluminum can. I invite you to play a game with me. You come with me, and you two, go stand over there.” A second of the actors responds, “No, that’s not an aluminum can, that’s a beach ball. That gives me an idea. Let’s all get into a circle.” Nobody moves. The scene just fell flat. The reason the scene fell flat is because a primary improvisation rule of “yes, and …” has been violated.

“Yes, and …” is critical to improvisational success. The attitude of “yes, and …” is “yes, I hear and acknowledge your idea, and I would like to propose something in addition, or perhaps even another idea.” The reason for this rule, and the goal of improv, is to foster an environment of rapport, creativity, and co-creation. When improvisational actors respond with any version or attitude of “no,” as opposed to being in rapport and sync, one actor is feeling defensive having had her idea so quickly dismissed and replaced. That actor may now feel the urge to defend that the imaginary prop is in fact an aluminum can and not a beach ball. Feelings are hurt, defenses come up, relationships polarize, and the scene fails.

Now imagine a second scene. This time when the audience is asked to call out a location and a situation, one person shouts out: “a conference room.” Another specifies that the situation involves “developing a strategy for merging two businesses,” or perhaps, “attempting to resolve a contract dispute prior to litigation.” Maybe the scene involves “having a conversation with a member of your staff who is performing beneath acceptable standards.” Lawyers are called upon to engage in improvisational scenes many times a day. While there is no substitute for preparation, we are often called upon to respond to surprises and unexpected turn of events. Now you are on stage with others who are similarly improvising, and success is dependent upon reaching satisfactory accord with the others involved.

In these situations, we are often required to process and respond instantaneously. And successful resolution depends on our ability to persuade the others to our ideas. Our success is compromised, and the scene fails, if they get defensive or antagonistic. And as opposed to stage performances, legal improvisation is further complicated because there are real-life consequences at stake. Physical world stakes (assets, salaries and such), as well as emotional stakes (perceptions of status, respect, and fairness, for example).

To put improvisational technique into context, we must recall Aristotle’s concept of pathos. Aristotle suggests that successful persuasion depends upon invoking in them the “right” emotions consistent with the action we desire them to take. If we invoke defensiveness, hurt and perceptions of disrespect or lowered status—even when those perceptions are mistaken—we compromise pathos, and, according to Aristotle, compromise persuasion by invoking the “wrong” emotions. Like the scene above with the aluminum can and beach ball, when we arouse the wrong emotions in others, we find ourselves stuck or unable to find the necessary support for our ideas and arguments.

Many lawyers have a habit of responding with “no” or “yes, but ...” both of which have the tendency to compromise rapport and foreclose the creativity required to move us towards a mutually satisfactory resolution. Further, because lawyers are so well trained and developed in logical analysis and reasoning, we tend to rely on those skills when persuading, ignoring Aristotle’s time-tested proof that credibility and invoking the “right” emotions are prerequisites to garnering support for our logical arguments. When they do not favorably respond to our logic, we conclude that they are idiots and treat them as such. Once we do that, we will act in accord with this belief and surely arise in them more “wrong” emotions, further compromising our ability to persuade. Notice that even with “yes, and …,” we can alter the direction of the idea. “Yes,” affirms them and that their idea has been heard; while the “and …” allows us to introduce our ideas in a way they are more likely to be reciprocally heard. “Yes, and …” is less abrupt than “no” and is far less likely to cause defensive shut down and acrimony.

Lawyers seeking to become more persuasive can achieve a lot of success by implementing improvisational rules into professional relationships with other lawyers, clients, staff, or anyone. These concepts are powerful and effective toward fostering support for, and achieving professional objectives. Moreover, by incorporating a “yes, and …” element into our response habit, we naturally build rapport and influence, while reducing acrimony and aggravation.

The Likeable Lawyer now offers a new class in our Advanced Persuasion Series, titled “Influence and Cooperation.” In this class, lawyers learn improvisational skills and practice them in the context of real-world professional situations. This class has already been met with very positive response. Participants report that they see immediate applicability to their professional and personal life situations, and realize how to can get more of their needs and objectives met by incorporating these skills.